This paper examines the two Supreme Courts’ decisions in the United States and Japan upon installation of a GPS tracking device on a vehicle. In U.S. v. Jones the Supreme Court of the United States in 2012 held that the government’s attachment of a GPS device to a vehicle constitutes a “search” under the Fourth Amendment. The Court held that the GPS attachment on a vehicle was the government’s physical intrusion on an “effect” under the Fourth Amendment. The Court held the installation is common law trespass which constitutes search within the meaning of the Amendment at the time it was adopted. Similarly in 2017 the Supreme Court of Japan held that attaching a GPS device on a vehicle without a warrant is illegal. In this case the Court held that the GPS investigation illegally violated privacy of the suspect. In addition the Court also held that the secret attachment of a device invaded the property interest. Some Japanese scholars say this latter holding is very similar to Scalia’s opinion in Jones because it focuses on tangible property interests. However these two cases represents different philosophies of judicial review. In Jones Scalia considered the original meaning of the Amendment should be the guiding principle of constitutional law. In contrast the Japanese Supreme Court likely to rely on the development of various precedents which secure privacy interests. That is the Japanese Court’s judicial philosophy is living constitutionalism.
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